However, University of Texas law professor Stephen Vladeck saw the circuit court’s decision as a sign that the case will soon make its way to the Supreme Court. In 2018, the Fifth Circuit Court decided in favor of Louisiana’s abortion safety regulations, which require that an abortion doctor have admitting privilges at a nearby hospital. That case is now being considered by the Supreme Court.
Circuit court judge James Dennis dissented from the panel’s ruling, noting that “[a] federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time.”
Texas Governor Greg Abbott issued the executive order (GA 09) on March 22 halting non-essential surgeries and medical procedures during the new coronavirus (COVID-19) pandemic, in order to free up resources and medical personnel to treat COVID patients.
Abbott clarified that the order would apply to “any type of abortion that is not medically necessary to preserve the life or health of the mother.”
Abortion providers, including Planned Parenthood and the Center for Reproductive Rights, filed an emergency lawsuit in a federal district court to continue elective abortions in Texas during the COVID-19 pandemic.
On Monday, the court granted a temporary restraining order to allow abortions to continue. Federal judges in Ohio and Alabama also halted similar state restrictions on elective abortions from going into effect.
Paxton then filed for appellate review at the Fifth Circuit court on Monday. He said in his petition to the Fifth Circuit that the district court’s decision “endangers lives and hinders the State of Texas’s efforts to combat the deadly novel coronavirus.”
“The State of Texas faces today its most serious public-health emergency in over a century,” he wrote, noting that the executive order halting non-essential surgeries and procedures was meant to conserve “personal protective equipment (PPE)” for the expected surge in new coronavirus patients at hospitals.
“Exempting abortions from the three-week pause that applies to everyone else would deplete scarce PPE, reduce hospital capacity, and risk spreading COVID-19 to hundreds, if not thousands, of individuals across the State,” he wrote.